EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 124
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 97(1) of the Public Service Act 1922 (the Act) provides that the Public Service Board (the Board) may, with the approval of the Governor-General, make regulations prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Part IV of the Act provides a means by which officers of the Australian Public Service may engage in other public employment whilst retaining certain leave entitlements and rights to return to the Service.
Section 87 of the Act sets out various forms of eligible employment for the purposes of Part IV of the Act. In particular it provides that employment as the holder of a ‘public office’ constitutes eligible employment. ‘Public office’ is defined in sub-section 87(1) as:
‘(a) a Commonwealth office;
(b) an office or appointment the holder of which is appointed -
(i) by the Governor of a State or by a Minister of a State; or
(ii) by the Administrator of the Northern Territory or by an Executive Member of the Legislative Assembly for the Northern Territory,
being an office or appointment prescribed, or included in a class of offices or appointments prescribed, by the regulations for the purposes of this paragraph; or
(c) any other office or appointment prescribed, or included in a class of other offices or appointments prescribed, by the regulations for the purposes of this paragraph,
but does not include an office or appointment in the public service of a State or of the Northern Territory;’.
‘Commonwealth office’ is defined in sub-section 87(1) as including:
‘(a) an office or appointment the holder of which is appointed by the Governor-General or by a Minister under a law of the Commonwealth (including this Act) or a law of a Territory other than the Northern Territory; or
(b) any other office or appointment the holder of which is appointed by the Governor-General, or by a Minister, being an office or appointment declared by the regulations to be a Commonwealth office....’.
It was desired that an officer of the Public Service appointed as Director-General of the Australian Secret Intelligence Service (ASIS) or otherwise holding an appointment in ASIS be covered by Part IV of the Act.
The statutory rules insert regulation 171B into the Public Service Regulations. This regulation prescribes the appointment of a person in ASIS (other than as Director-General) for the purposes of paragraph (c) of the definition of “public office” in sub-section 87(1) of the Act. The statutory rules also amend Schedule 2 of the Public Service Regulations to prescribe the office of Director-General of ASIS for the purposes of paragraph (b) of the definition of “Commonwealth office” in sub-section 87(1) of the Act.
Section 87B of the Act provides, inter alia, that the Board shall not make a regulation for the purposes of the definition of ‘public office’ unless the Board is satisfied as to the terms and conditions of employment of the holder of the relevant office or appointment and the Minister for Finance or an officer authorised by him is satisfied about the arrangements that have been made for benefits under the Superannuation Act 1976 in relation to the office-holder or appointee. The Board and the officer authorised by the Minister for Finance are satisfied as required in relation to appointments in ASIS.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1986 were enacted to address the need for specific regulation concerning the eligibility of officers of the Australian Public Service who take up positions within the Australian Secret Intelligence Service (ASIS). Authorised by the Public Service Board and under the authority of sub-section 97(1) of the Public Service Act 1922, these rules were designed to ensure that officers of the Public Service who engage in employment with ASIS, including the role of Director-General, retain certain entitlements and rights to return to the Public Service. The policy objective is to facilitate seamless transitions between public service roles and ASIS positions while ensuring compliance with terms and conditions of employment and superannuation benefits as prescribed under the Superannuation Act 1976.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1986 No 124 applies to officers of the Australian Public Service who are engaged in other public employment while retaining certain leave entitlements and rights to return to the Service, as provided for in Part IV of the Public Service Act 1922. This includes officers appointed to the Australian Secret Intelligence Service (ASIS), specifically those appointed as Director-General or in other roles within ASIS. The amendment extends the definition of "public office" to include appointments within ASIS, thereby ensuring that officers in these roles are eligible for the benefits outlined in Part IV of the Act. The geographic scope of this amendment is national, as it pertains to the Australian Public Service and its officers across the Commonwealth. The amendment does not introduce any exclusions, exemptions, or thresholds but ensures compliance with the terms and conditions of employment and superannuation arrangements as stipulated in the Act. Subordinate instruments may further detail or expand the application of these regulations as necessary.
Key Provisions
The Public Service Regulations (Amendment) Statutory Rules 2004 (C2004L01658) amend the Public Service Regulations to include appointments within the Australian Secret Intelligence Service (ASIS) under the definition of "public office" in the Public Service Act 1922 (the Act). Regulation 171B specifically prescribes the appointment of a person in ASIS (other than as Director-General) for the purposes of paragraph (c) of the definition of “public office” in sub-section 87(1) of the Act. Furthermore, the amendments to Schedule 2 of the Public Service Regulations now include the office of Director-General of ASIS within the definition of "Commonwealth office" in sub-section 87(1) of the Act.
The obligations imposed by the Act on officers of the Australian Public Service who engage in eligible employment, such as holding a "public office" within ASIS, include retaining certain leave entitlements and rights to return to the Service. This ensures that officers who temporarily leave the Public Service for other public employment can maintain certain benefits and protections afforded by their original employment within the Australian Public Service.
Under the Act, officers must comply with the terms and conditions of their employment in their new roles while ensuring they meet the requirements set forth by the Public Service Board and the Minister for Finance or an authorised officer. The Public Service Board must be satisfied that the terms and conditions of employment for the office or appointment are appropriate, and the Minister for Finance or an authorised officer must be satisfied that the arrangements for benefits under the Superannuation Act 1976 are adequate.
Failure to comply with the requirements set out in the Act or the regulations could result in significant consequences. While the specific penalties are not detailed within the statutory rules, breaches of the Public Service Act or associated regulations can typically lead to disciplinary actions, financial penalties, and potentially criminal charges depending on the severity of the breach. These consequences may include fines and imprisonment for serious offences, reflecting the importance of adherence to the legislative framework governing the Public Service.